Marken v. Wachusett Mountain Ski Area, Inc., 21-P-667 (Mass. App. May 02, 2022)

To Read an Analysis of this decision see: Release validity was based on whether brother had authorized brother to sign electronic release for him.

CHARLES MARKEN
v.
WACHUSETT MOUNTAIN SKI AREA, INC., & another.^[1]

No. 21-P-667

Appeals Court of Massachusetts

May 2, 2022

Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass.App.Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass.App.Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel’s decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass.App.Ct. 258, 260 n.4 (2008).

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiff, Charles Marken, filed a complaint in the Superior Court against Wachusett Mountain Ski Area, Inc. and Wachusett Mountain Associates, Inc. (the defendants or Wachusett) for injuries he sustained while skiing.^[2] On cross motions for summary judgment, the judge allowed the defendants’ motion and dismissed the complaint. This appeal followed. We affirm.

Background.

As the party against whom summary judgment entered, we recite the facts in the light most favorable to the plaintiff. See Cesso v. Todd, 92 Mass.App.Ct. 131, 132 (2017). On January 7, 2017, the plaintiff, a beginner skier, met his brother, Anthony Marken, at Wachusett Mountain for a day of skiing. When Charles arrived, Anthony was at the rental shop. Anthony had already rented ski equipment for both of them by the time Charles arrived.^[3]

In order to rent equipment, a renter must agree to the terms of a rental agreement using a digital kiosk system. After reviewing the rental agreement, which contains a release from “any legal liability,” renters must click “I agree” on the screen. The renter then enters personal information including height, weight, age, boot size, and skier type. The system uses this information to calculate the appropriate ski binding release setting. Once the rental agreement is signed, the system prints a sticker with the renter’s information, including the binding release setting. The ski technician uses the information on the sticker to select ski boots that are fitted to match the renter’s boot size and binding release setting. Charles and Anthony obtained their equipment consistent with the foregoing process, and began to ski. Charles, an admitted beginner, fell twice while skiing prior to the injury at issue; on both occasions, his bindings released properly. At some point, Charles decided to ski a black diamond trail which is for expert skiers. During that run, Charles tried to slow down. He fell, sustained serious injuries to his left leg, and was transported to a hospital. Thereafter, the defendants tested the equipment that Charles had used. The equipment passed inspection and testing, and was returned to the rental inventory.

Discussion.

“We review a motion for summary judgment de novo. … In doing so, we must determine ‘whether, viewing the evidence in the light most favorable to the nonmoving party, all material facts have been established and the moving party is entitled to judgment as a matter of law.'” Psychemedics Corp. v. Boston, 486 Mass. 724, 731 (2021), quoting Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117, 120 (1991). Here, the defendants claim that the release of liability in the rental agreement is valid and enforceable against the plaintiff. Generally, we will enforce a release disposing of all claims and demands arising out of any transactions between parties. See Leblanc v. Friedman, 438 Mass. 592, 597-598 (2003). Indeed, “Massachusetts law favors the enforcement of releases.” Sharon v. Newton, 437 Mass. 99, 105 (2002). This is true even where, as here, the party signing the release either does not read it or does not understand it. See Id. at 103.

Charles does not challenge the validity or enforceability of the release itself. Instead, he claims that the release is unenforceable because he did not sign it, and did not authorize Anthony to sign it on his behalf.^[4] However, this claim is belied by Charles’s sworn deposition testimony. Charles was asked, “Had you authorized your brother to [complete the rental agreement] for you?” He answered, “Yes.”^[5] He did not equivocate and did not amend his deposition answers. See Tarn v. Federal Mgt. Co., 99 Mass.App.Ct. 41, 46-50 (2021). Charles cannot now create an issue of material fact by claiming that he did not authorize Anthony to sign the release on his behalf. See O’Brien v. Analog Devices, Inc., 34 Mass.App.Ct. 905, 90 6 (1993) (party cannot create disputed issue of fact by contradicting statements previously made under oath at deposition). As such, summary judgment was properly granted to the defendants.^[6] See Tarn, supra (summary judgment proper where plaintiff was bound by deposition testimony and where binding admission established she could not prevail at trial).

Request for attorney’s fees and costs.

The defendants’ request for attorney’s fees and costs is allowed. The defendants may submit a petition for appellate attorney’s fees to this court in the manner prescribed in Fabre v. Walton, 441 Mass. 9, 10-11 (2004), within twenty days of the issuance of this memorandum and order. The plaintiff may respond to the petition within twenty days of said filing.

Judgment affirmed.

Blake, Lemire & Hershfang, JJ. [7]

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Notes:

^[1] Wachusett Mountain Associates, Inc. All claims against third-party defendant Head USA, Inc. were voluntarily dismissed prior to the entry of summary judgment, and it is not a party to this appeal.

^[2] The complaint asserted claims for negligence, breach of express and implied warranty, breach of contract, breach of the implied covenant of good faith and fair dealing, and negligent misrepresentation.

^[3] Because the plaintiff and his brother share a surname, we use their first names to avoid confusion.

^[4] Charles testified that on previous ski trips he had signed a release, and therefore he expected to sign a release at Wachusett.

^[5] To the extent that Charles argues that this question and answer must be viewed in context with the entire line of questioning, we agree. In so doing, we conclude that Charles authorized Anthony to sign the rental agreement containing the release on his behalf. See Fergus v. Ross, 477 Mass. 563, 567 (2017) (“Apparent authority exists when the principal, by his . . . words or conduct, causes a third person to reasonably believe that the principal consents to the agent acting on the principal’s behalf”).

^[6] Because of the result we reach, we do not consider Charles’s spoliation of evidence claim.

^[7] The panelists are listed in order of seniority.

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